Opn. No. ( 1981 )

Hon. Robert G. Main, Jr., Village Attorney, Malone

You have asked whether the Police Department of the Village of Malone may, after the Department discovers that he has been convicted of a felony, request the transfer of a CETA employee who is assigned to work as a dispatcher in the Police Department. The CETA employee contends that the transfer is improper because he had obtained a certificate of relief from disabilities.

Section 701 (1) of the Correction Law provides:

"A certificate of relief from disabilities may be granted * * * to relieve an eligible offender of any forfeiture or disability, or to remove any bar to his employment, automatically imposed by law by reason of his conviction of the crime or the offense specified therein."

Section 751 of the Correction Law prohibits the denial of an application for public employment based upon the fact that the applicant has been convicted of one or more criminal offenses unless there is a direct relationship between the criminal offense and the employment sought or the granting of employment involves an unreasonable risk to property or persons. The public agency must give consideration to a certificate of relief from disabilities (§ 753 [2]). However, the Correction Law explicitly exempts membership in a law enforcement agency from the definition of employment (§ 750 [5]). Therefore, a law enforcement agency may consider an applicant's conviction of one or more criminal offenses in determining whether to accept his application for employment in a law enforcement agency without regard to the criteria set forth in section 751.

We conclude that the Police Department of the Village of Malone may request the transfer of a CETA employee upon discovering that he has been convicted of a felony even though the employee had obtained a certificate of relief from disabilities.